Dennis Garbutt v. John W. Haviland

August 5, 2011

DENNIS GARBUTT, PETITIONER,v.JOHN W. HAVILAND, ET AL., RESPONDENT.

FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises several challenges to the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at his third parole consideration hearing held on May 29, 2007. The matter has been fully briefed by the parties and is submitted for decision. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

I. Procedural Background

Petitioner is confined pursuant to a 1984 judgment of conviction entered against him in the Los Angeles County Superior Court following his guilty plea to first degree murder with use of a firearm. (Pet., Ex. D.) Pursuant to that conviction, petitioner was sentenced to twenty-seven years to life in state prison. (Id.)

The parole consideration hearing that is placed at issue by the instant federal habeas petition was held on May 29, 2007. (Pet., Ex. H.) Petitioner appeared at and participated in the hearing. (Id. at 3, et seq.) Following deliberations held at the conclusion of the hearing, the Board panel announced their decision to deny petitioner parole for three years as well as the reasons for that decision. (Id. at 71-81.)

Petitioner challenged the Board's 2007 decision in a petition for writ of habeas corpus filed in the Los Angeles County Superior Court. (Answer, Ex. 2.) That court found there was sufficient evidence to support the Board's finding that petitioner was unsuitable for parole, but found that the evidence was insufficient to support the Board's deferral of petitioner's next parole consideration hearing for three years. (Id.) The Los Angeles County Superior Court ordered the Board to conduct a new hearing to determine the length of petitioner's parole denial. (Id.) The Board appealed this decision to the California Court of Appeal for the Second Appellate District. (Answer, Ex. 3.) By order filed April 21, 2009, the California Court of Appeal reversed the Los Angeles County Superior Court's decision, concluding that sufficient evidence supported both the Board's decision finding petitioner unsuitable for parole, and also its decision to defer petitioner's next parole suitability hearing for three years. (Id.)

On May 14, 2009, petitioner filed another petition for writ of habeas corpus in the California Court of Appeal challenging the Board's 2007 decision finding him unsuitable for parole. (Answer, Ex. 4.) In that petition, petitioner claimed that the Board's decision violated his right to due process and the terms of his plea agreement. (Id.) The California Court of Appeal denied that petition, citing the decisions in In re Lawrence, 44 Cal.4th 1181 (2008) and In re Shaputis, 44 Cal.4th 1241 (2008). (Answer, Ex. 5.) On June 25, 2009, petitioner filed a petition for review in the California Supreme Court. (Answer, Ex. 6.) That petition was summarily denied. (Answer, Ex. 7.)

On September 8, 2009, petitioner filed his federal application for habeas relief in this court. Therein, petitioner contends that the Board's 2007 decision to deny him parole, and its decision to defer his next parole suitability hearing for three years, was not supported by "some evidence" that he posed a current danger to society if released from prison, as required under California law. (Pet. at 5-1; Memorandum of Points and Authorities in Support of Petition (hereinafter P&A) at 5-6, 13-24.) Petitioner also claims that the Board's unfavorable suitability decision violated the terms of his plea agreement. (Pet. at 5-1; P&A at 5-12.)

II. Standards of Review

Applicable to Habeas Corpus Claims An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

For purposes of applying &sect; 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied ...

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